When is it legitimate to break the law? Reflections on the life of Bram Fischer

Following the recent Bram Fischer Memorial Lecture at the University of Oxford, Nic Cheeseman reflects on when it is legitimate to break the law. This piece originally appeared in Nic’s regular column for the Daily Nation.

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The rule of law is a cornerstone of democratic government. In many established democracies, there is a general belief that because the government represents the will of the people, the rule of law is legitimate and must be respected. Protests are acceptable, of course, but it is often felt that they should focus on changing the law rather than breaking it.

But what about if you live under an authoritarian government? Or under a democratic government that starts to make bad laws? When it is ok to break the law, and in what way? This is not an abstract or theoretical question – it is central to some of the biggest developments and debates of our times. How to respond to a government that breaks its own rules is a question facing opposition supporters in Angola, Burundi, the Democratic Republic of Congo, Equatorial Guinea, and Zimbabwe. It has also been a hot topic of debate in Kenya, where leaders and commentators have spoken forcefully both for and against campaigns of civil disobedience in response to controversial elections and democratic backsliding.

This week, the University of Oxford held a lecture to celebrate the life and legacy of Bram Fischer, the Afrikaner lawyer credited by many with saving Nelson Mandela from the death penalty at the Rivonia Trial in 1963-4. Fischer’s life, and in particular his decision to break the law following many years of trying to enforce it, has much to teach contemporary protestors and activists. But these lessons are not straightforward, and Fischer’s actions do not support the breaking of the law in democratic political systems.

Laying down the law

Researchers and commentators who write on Africa are used to lamenting the fragility of the rule of law. This weakness is often said to lie at the heart of the corruption crisis in countries such as Kenya and Nigeria, where politicians regularly flout regulations concerning the use of public funds. The poor implementation of the rules of the game has also been an important factor in facilitating state repression and the determination of leaders in Burundi and the Democratic Republic of Congo to secure unconstitutional third terms.

Of course, this is not just a problem for authoritarian governments. Even leaders that claim to be democratic have manipulated the rule of law in a way that advantages them and disadvantages their rivals. In South Africa, the African National Congress – once one of the continent’s leading lights – has presided over a period of growing corruption, and media interference that has called into question the ruling party’s democratic credentials. In Tanzania, President John Magufuli – now nominated for the ‘Person of the Year’ award by Forbes Africa – has clamped down on opposition rallies and media that is critical of the government.

When faced with these kinds of examples, it is only natural that many civil society groups, donors, and academics have called for greater respect for the Africa’s constitutional and legal frameworks. But the rule of law is not always a good thing. Many authoritarian governments have put in place authoritarian legislation that flouts core democratic principles. Laws may constrain freedom as much as protect it, and may facilitate authoritarian abuse as much as they may keep it in check.

The apartheid state in South Africa is a good example of this. The system of racial domination put in place by the National Party was brutal and unjust, but it was not random or unregulated in the way that some dictatorships have been. Rather, many of its central tenets were carefully codified in a raft of legislation designed to give the system of exploitation permanence and a sense of legal legitimacy. To be sure, the laws were often enforced partially and unfairly, but this should not take away from the fact that the laws themselves were a big part of the problem.

A more recent example of this – and one that perhaps has a broader resonance in contemporary Africa – is the way that election rules are often manipulated to exclude opposition candidates from elections on the basis that they are too old, have not lived in the country for long enough, or are ineligible for some other reason. The most egregious example of this came in Zambia, where President Chiluba changed the protocol governing elections to ban his predecessor, Kenneth Kaunda, from competing for the presidency in 1996. The grounds that Chiluba used to exclude Kaunda was that he was not truly Zambian (Kaunda’s family hails from what is now Malawi) and that he was therefore ineligible to contest the polls – despite the fact that he had occupied State House for almost thirty years.

In cases like these, what is a good citizen to do? Must they obey the rules even though the law, to borrow some famous words of Charles Dickens, ‘is an ass’? Or is it acceptable to break the law when the law is manifestly unjust? These are questions that political and legal theorists will be debating till the end of human existence, but some important lessons can be learnt from the principles and actions of one of the continent’s most famous lawyers.

The life and legacy of Bram Fischer

Bram Fischer was born into the Afrikaner aristocracy in Bloemfontein on 23 August 1908. Despite his privileged upbringing, he decided to oppose South Africa’s white minority government and instead to campaign for social justice. Having been admitted as an advocate to the Johannesburg Bar in 1935, his best known contribution to the liberation struggle was to defend Nelson Mandela and nine other ANC leaders in the Rivonia Trial, in which they faced the death penalty. For his willingness to defy his own community and fight for a non-racial South Africa, Fischer was subsequently lauded by Mandela as having shown ‘a level of courage that was in a class by itself’.

As a lawyer and freedom fighter, Fischer’s relationship with the law was complex. Despite having worked within the law during numerous political trials, he fully understood its practical and moral failings. Having been arrested in September 1964 (September) on charges of furthering the cause of communism and conspiracy to overthrow the government, Fischer grappled with the question of whether he should subject himself to the legal system or directly challenge it. Ultimately, he skipped bail and went underground in January 1965. In the subsequent trial, he defended his actions and provided one of the most eloquent and effective arguments against breaking the law ever made:

I accept the general rule that for the protection of a society laws should be obeyed. But when laws themselves become immoral and require the citizen to take part in an organised system of oppression – if only by his silence or apathy – then I believe that a higher duty arises. This compels one to refuse to recognise such laws. The laws under which I am being prosecuted are enacted by a wholly unrepresentative body, a body in which three-quarters of the people of this country have no voice whatever . . . My conscience does not permit me to afford these laws such recognition, as even a plea of guilty would involve. Hence, though I shall be convicted by this Court, I cannot plead guilty. I believe the future may say that I acted correctly.

The fact that Fischer was right about the way that his own sacrifice would be remembered, and that he intentionally broke the law as part of a calculated stand against apartheid, has meant that his memory is often invoked by people seeking to challenge the status quo today. But if we are to learn from Fischer’s actions and words they need to be studied carefully and placed in their appropriate context because, while he ended up breaking the law, he spent most of his life fighting to enforce it.

When can the law be broken?

Fischer did not argue that individual laws should be broken whenever they are wrong. He did not even argue that the rule of law should be broken when most of the laws are wrong. Rather, he identified specific circumstances that legitimated rule breaking, namely that the law was unjust and that the process through which the rule of law was made was illegitimate. In making this case, he was explicitly invoking the principle that people must have a say in the laws that govern them – a kind of legal democracy if you will. Thus, one of his central complaints against the South African legal system was that ‘The laws under which I am being prosecuted are enacted by a wholly unrepresentative body, a body in which three-quarters of the people of this country have no voice whatever’.

Bram was also clear that breaking the law was not something that should be undertaken lightly. His decisions to support violent rebellion, and to go underground himself, were only taken after alternative strategies to change the law through non-violent means had been eliminated by a deeply authoritarian state. These decisions also followed long periods of painful internal reflection in which he grappled with his ‘deeply rooted respect for legality’, and his belief that breaking the law should only be considered as a last resort.

Given this, it should be clear that while Fischer believed that there were circumstances under which it was justifiable to break the law, he also thought that these were very specific and needed to be carefully considered. Although he moved away from his initial stance of non-violence, Fischer did not support attacks against human beings, and believed that legal forms of protest should be exhausted before illegal ones were undertaken. Thus, he may well have had sympathy for many of the protests movements operating in countries such as Kenya and South Africa today, but he would also have exhorted them to try and work within the law before breaking it.